Constitutional courts are one of the most important institutions of Western European democracies. Discuss. If we define a constitution as 'a set of rights, powers and procedures that regulate the relationships between both institutions of state and citizens and between the institutions themselves1', then we can claim that all states in Western Europe have a constitution. However, not all these states possess a constitutional court, which is regarded by some to be one of the most important institutions of democracy.
This essay will attempt to assess the differing roles of constitutional courts in Europe, and from this conclude how important they are to both the functioning of government and to the enforcement of the articles of the constitution in the governance of the country. The essay will also attempt to suggest reason why some states do not have a court. Firstly, however, it is important to define exactly what a constitutional court is. At its most basic level, it is a body designed to ensure legislation is in line with the provisions of the constitution.
The courts also act to prevent the institutions of state for abusing their power or exceeding their legitimate authority. 2 Even prior to any further examination, it seems clear that at least in theory the constitutional court has an important role to play in a democratic country. However, the importance of a constitutional court can only be truly examined in light of its full powers and scope, and when looked at in situ with other state institutions. As this varies from state to state, the courts of Italy and France will be used as examples.
In Italy, provisions for a constitutional court were drawn into the new post-war constitution in 1948. There was support for the idea that there had been too few constitutional safeguards in the pre-war constitution that had allowed fascists to come to power legally. Placed in the context of the rest of the constitution, it was part of a wider dispersal of power; it was hoped an independent court would act as an effective check on other state institutions.
Acting in such a way, it would seem that the court was envisaged to have a key role in ensuring a pluralist approach to governance, so hence could be said to be an important role in the state. The Italian constitutional court did not function, however, until 1956 due to immense hostility from senior figures in the judiciary, reluctant to have their own decisions scrutinised by another body. Due to this resentment, along with both public and government apathy towards it, even after its eventual establishment, the court was forced to behave cautiously for the early part of its existence.
Despite this, the court has become increasingly important, and played a more active role in national life as acceptance of its position has grown. In Italy, the court has a range of powers at its disposal, which are useful to examine when determining its importance. It also has a number of limitations that should be examined. Formally, the court has the right to decide upon the constitutionality of laws at both national and regional level.
It also decides upon the validity of decree legislation from the executive and resolves conflict between the other branches of government. 4 In these areas the court has great influence, even though it can only act if approached to do so by another branch of government or other sections of the judiciary. When used, however, it has proved decisive in shaping policy and even acting to prompt legislation from the parliament. The court's powers are also limited in other ways.
For example, despite the supposed independence of the court, 2/3 of its members are political appointees. Even if this has no great effect, it does reduce the importance of the court as judges are more likely to be favourable to legislation passed by their supporting party, hence not always providing a true separation of powers. The court has also proved to generally adhere to the views of the political elite,5 as with the issue of the powers of central government and regional government.
These factors both lead to the conclusion that the court is more politically tied and therefore less important to democracy in Italy that would first seem apparent. The importance of the court can also be reduced when the implementations of its rulings are looked at. If the court decides something is unconstitutional, its decision is final. However, if it rules something not a question of constitutionality then the decision is not binding, and lower courts can re-introduce the question again.
There is still a reluctance to accept the Constitutional courts rulings by many of the judiciary, especially those in the higher courts. This too limits the importance of the court. In France, the equivalent of the constitutional court, the Constitutional Council is a very different sort of body. Much more politicised, with all its members being political appointees, almost always former ministers are members of parliament. The role played by the Council is also vastly different to the Italian court.
Whereas in Italy, legislation can be referred to the court as issues arise, in France the court can only review legislation a priori or before it becomes law. The court cannot declare any laws previously passed as unconstitutional. Despite this being an apparent weakness, which could be said to reduce the importance of the Council, its strength when it reviews this legislation is much greater. It should be remembered though that as in Italy, the court cannot act unless invited to rule by deputies or senators.